Hungary: Constitutional Change Falls Short

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(Budapest) – Recent changes to the Hungarian constitution do little to address concerns set out by the Council of Europe and the European Parliament. The changes leave in place provisions that undermine the rule of law and weaken human rights protection.

The Hungarian parliament, with a majority of its members from the governing party, adopted the amendments on September 16, 2013.

“The Hungarian government’s largely cosmetic amendments show it’s not serious about fixing the human rights and rule of law problems in the constitution,” said Lydia Gall, Eastern Europe and Balkans researcher at Human Rights Watch. “It’s come to the point where the European Council and the European Commission need to make clear there will be consequences for Hungary, and to move from talk to action.”

The amendments were designed to respond to criticism by the Venice Commission, a Council of Europe expert body specializing in constitutional reform, and the European Parliament over constitutional amendments in March. Those amendments undermined the independence of the judiciary, limited religious freedom, and restricted broadcasting political campaign ads to the state broadcaster.

One positive amendment removed the power of the president of the National Judicial Office, which is not an independent body, to transfer cases between courts.

However, serious concerns remain, including:

Lack of judicial independence:The amendments strengthen the powers of the National Judicial Council, a self-governing supervisory body, but leave key tasks of administering the courts with the National Judicial Office.

Religious discrimination:While allowing any religious group to refer to itself as a “church,” the amendments do not address the discrimination against churches the government has not recognized. A parliamentary committee, instead of an independent body, confers recognition, which is necessary for a church to apply for government subsidies.

Political campaign ads:The amendments removed the rule that only state broadcasters can run political campaign ads, but oblige commercial media outlets to run such ads for free. It is unlikely that commercial outlets would agree to run campaign ads without charge.

“It is wishful thinking for the government to contend that its amendments will end the international debate about Hungary’s constitution,” Gall said. “The changes add up to little more than tinkering around the edges, leaving huge problems that undermine the rule of law and basic human rights.”

The amendments are the latest in a series of problematic constitutional and legal changes introduced by the ruling Fidesz party since it won elections with an absolute majority in 2010. Major changes to Hungary’s legal framework have curbed the independence of the judiciary, interfered with the administration of justice, forced nearly 300 judges into early retirement, and imposed limitations on the Constitutional Court’s ability to review laws and complaints.

The Hungarian government’s actions have attracted heavy international criticism, most recently by the European Parliament. In July it adopted a report underscoring its serious concerns about Hungary’s rights record and urging specific steps to address them. The Venice Commission raised similar concerns about the March amendments in an expert opinion.

Hungary’s failure to take the steps needed to bring its constitutional and legal framework in line with Council of Europe recommendations and European Union (EU) law warrants a forceful response, Human Rights Watch said. The Venice Commission should scrutinize these new changes and issue its expert opinion. The EU should consider declaring that the Hungarian government’s actions pose a clear risk of a serious breach of the values in article 2 of the EU Treaty, including rule of law and respect for human rights. A finding of such a risk would trigger action under article 7 of the EU Treaty, which could lead to suspension of Hungary’s voting rights as an EU member.

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This 29-page report analyzes the new constitution and laws and their negative effects on human rights and the rule of law. It shows how the government has largely ignored criticism from the EU and the Council of Europe and, through further constitutional changes, sought to reverse binding rulings by Hungary’s Constitutional Court upholding fundamental rights.